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Vivian Odogwu v The State (2013) – SC

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➥ CASE SUMMARY OF:
Vivian Odogwu v The State (2013) – SC

by “PipAr” B.C. Chima

➥ COURT:
Supreme Court – SC.122/2009

➥ JUDGEMENT DELIVERED ON:
12 July 2013

➥ AREA(S) OF LAW
Murder
Circumstantial evidence
Hearsay evidence
Character evidence
Tainted witnesses

➥ NOTABLE DICTA
⦿ RESPONDENT WITHOUT CROSS-APPEAL SHOULD ADOPT APPELLANT’S GROUNDS OF APPEAL
A respondent, without a cross-appeal or Respondent’s Notice, may adopt the issues formulated by the Appellant or formulate his own issues provided the issues so formulated are derivable from the grounds of appeal. — N.S. Ngwuta, JSC.

⦿ GROUNDS OF APPEAL SHOULD NOT BE LESS THAN THE ISSUES FORMULATED
A principle of formulation of issues in appeal is that the grounds of appeal should in no circumstance be less than the issues for determination. While the Court may tolerate equal number of grounds of appeal and issues framed therefrom, as in this case, a situation where there are less grounds of appeal than issues for determination will not be tolerated. See Agu v. Ikewibe (1991) 3 NWLR (pt. 180) 385; A-G Bendel State v. Aideyan (1989) 4 NWLR (pt. 118) 646; Ugo v. Obiekwe & Anor (1989) 1 NWLR (pt. 99) 566. — N.S. Ngwuta, JSC.

⦿ WHO IS A TAINTED WITNESS
A tainted witness falls into one or both of the two categories hereunder listed: (1) A witness who is an accomplice in the crime charged. (2) A witness who, by the evidence he gives, may and could be regarded as having some purpose of his own to serve. Rasheed Olaiya v. The State (2010) Vol. 180 LRCN 1-197 p.34; The State v. Dominic Okoro & Ors (1974) 2 SC 73 at 82; Ishola v. The State (1978) 9-10 SC 73 at 100 .— N.S. Ngwuta, JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Nwali Sylvester Ngwuta, JSC

➥ APPEARANCES
⦿ FOR THE APPELLANT
Dr. Onyechi Ikpeazu SAN.
Ike Ogbogu Esq.

⦿ FOR THE RESPONDENT
R. N. Godwin, state counsel, Rivers state.

➥ CASE HISTORY
The prosecution’s theory is that out of frustration at being dumped by the deceased to whom she was engaged, the appellant managed to sneak into the deceased’s apartment with a spare key, waited for the deceased who was at work, took him by surprise when he returned in the night of 31/7/2001, attacked and killed him with a stabilizer and two kitchen knives.

On the other hand, appellant claimed that the deceased came to her at her institution on 30/7/2001, brought her to his home for reconciliation. Deceased locked her in the house on 31/7/2001 and went to work. Deceased came back by 10pm and she was angry at being kept in the house when she had some assignment to do in the school. The deceased apologised, gave her N10,000 for her needs and as the deceased was about driving her back to school, two masked men invaded the house and killed the deceased.

The trial court convicted the appellant and sentenced her to death by hanging.
Aggrieved by the judgment and sentence of death passed on her, appellant appealed to the court below. The court below dismissed the appeal and affirmed the judgment of the trial court.

Appellant has appealed to this court on five grounds.

➥ ISSUE(S) & RESOLUTION

I. Whether the honourable Court of Appeal was right to hold that PW3 and PW4 were not tainted witnesses?

RULING: IN APPELLANT’S FAVOUR.
A. THAT THE PW4 & PW4 ARE TAINTED WITNESSES
“PW3 was the father of the deceased. At page 63 of the record, he said, inter alia: ‘The accused and my son Iyobu did not marry. I know because of the accused attitude that made my son not to marry her. My son told me he would not marry the accused again because of the way accused travels out without telling him. The accused was aware that my son Iyobu was not going to marry her again. There was one day that the accused came to my house and wanted to drink bleach. I did not know the accused intention why she wanted to commit suicide by drinking bleach.’”

“PW4’s evidence-in-chief and under cross-examination runs from pages 64 to 84 of the record. He is an elder brother of the deceased. At page 65 of the record he made a general comment on the broken relationship between his younger brother, the deceased, and the appellant and the reason for the break-up of the relationship. At page 66 of the record, the witness came down to specifics: ‘He spoke first on the issue of infidelity. He accused her of dealing with four men the same time. Although the deceased did not mention their names, he spoke of a cult student whom the deceased said walked up to him and her in a supermarket and cautioned him to beware of his girl friend. According to him, my brother the (deceased) turned to look at her for a reaction. She passively requested him to overlook it. My brother the (deceased) spoke of a man in the USA who sends her clothes and other members of her (accused) family. When my brother (deceased) confronted the accused with these facts, she claimed that the man has a relation with another member of 25 … 26 her family not herself… My brother (deceased) talked of another man, a company manager whom he described as a married man but was in love with her. According to him, this man was responsible for her (accused) prodigal life style. I mean that the accused (sic) above the life of a student. The 4th and last persons (sic) he said, was a young law graduate to whose graduation ceremony she surreptitiously attended at Lagos and took a photograph with but she (accused) claimed she was on errand for the mother to register a title deed for her. He denied attending such a programme but unknown to the accused he (my late brother) stumbled over the photograph…’”

“The hearsay evidence of the PW3 and PW4 does not fall within the provision of Section 39 of the Evidence Act. The evidence was given as proof of the facts, stated and for the trial Court to draw inference of the guilt of the appellant from the said facts. Above all, the said hearsay evidence is bereft of probative value, its main purpose being to portray the appellant as a scarlet woman as if she was charged and tried for an offence of moral depravity. By deliberately bringing in matters that are totally irrelevant to the charge of murder, the PW3 and PW4, in their hearsay evidence, brought themselves within the description of tainted witness. In pursuit of their personal interest, as opposed to the interest of justice, the PW3 and, particularly, PW4 turned the murder trial into a referendum in the appellant’s personal ethics .”
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II. Whether the honourable Court of Appeal was right to hold that the testimony/evidence of PW1 – PW4 were (sic) not hearsay evidence thereby entitling the trial Court to rely on their evidence to convict the appellant?

RULING: IN APPELLANT’S FAVOUR.
A. THAT THE DETECTIVES/IPO STATEMENT/EVIDENCE IS SPECULATIVE
“PW1 said he got a report of the incident on 2/8/2001. He did not visit the scene until 6/8/2001 and he described himself as a detective. The portion of his evidence reproduced below is at best inadmissible hearsay and at worst a figment of the witness’ fertile imagination. He said on Oath, inter alia: ‘On 31st July, 2001 the deceased came back from work, entered into his parlour and locked it, drew the curtains (door) leaving the bunch of keys on the door. Unknown to him that the accused who had his spare keys had gained entrance into his apartment. The accused opened the backyard door through the kitchen where she gained entrance into the parlour. She attacked the deceased by hitting him with stabilizer on his face. The deceased fell in the parlour and picked some bottles and kitchen knife and stabbed the deceased all over his body that result in his death.’”

Also read:  Mr. Gabriel Jim-jaja v. Commissioner Of Police Rivers State & Ors. (2012)

“At page 25, he swore that: ‘I last told this Court that when the deceased later made up his mind not to marry the accused, the accused became bitter, angry and frustrated and threatened to kill the deceased. At one time the accused threatened to commit suicide by drinking bleach in the deceased home…. One day the accused visited the deceased in his home at 49 Woji Road, Port Harcourt and met Cecilia Generis in the deceased house at 30 … 31 No. 49, Woji Road. The deceased beat up the said Cecilia Genesis and carried the stabilizer in the deceased home to hit the said Cecilia Genesis but she was prevented by the deceased. It is the same stabilizer tendered as Exhibit M yesterday that the accused used…’”

“At page 46, PW1 swore that: ‘The accused leaked the gas in the deceased kitchen in attempt to destroy the entire evidence as per my investigation. The accused denied this fact in her statement to the police. I got this fact from Mr. Akingboye when I visited the scene.’”

“My Lords, above is in the main, the evidence of the star witness in the case and based on which the Appellant was convicted. In my view, this witness, masquerading as Shylock Holmes is a sorry excused for a Police detective. If the prosecutor willingly or on sheer ignorance of the evidence law, led his witness to give such evidence in a murder trial, the trial Court and particularly the defence counsel, failed in their duty to the cause of justice and to the appellant. Furthermore, if the learned defence counsel was not fully aware of his duty to protect his client’s interest by objecting to inadmissible evidence, the trial Court should have made sure that the trial was not marred by reception of inadmissible hearsay evidence and evidence based on the witness’ speculation.”

B. THAT PW2 STATEMENT IS HEARSAY AND SPECULATIVE
“PW2 testified from pages 50 to 60 of the record. This witness repeated part of the PW1’s evidence in relation to the relationship between the deceased and the Appellant and the reason for the break-up of the relationship; facts that could only have come to his knowledge from another source which he did not disclose. As if the witness is an expert of moral behaviour and the Appellant was on trial for moral delinquency, PW2 swore, inter alia: ‘From my observation of the accused she has a good temperament but slippery. The accused does immoral things and immediately you accuse her she will be crying. The accused’s moral life is questionable. On several occasions, the accused travelled outside the State with other men and the accused herself rang the deceased from Lagos and Owerri announcing her whereabout.’”

C. THAT PW2 IS NOT AN EXPERT ON WOMEN’S MORAL CHARACTER
“In as much as the PW2 relied on his observation of the appellant, his evidence is inadmissible as he did not qualify himself as an expert on young woman’s moral behaviour. In testifying of the appellant’s travels with other men and her calls to the deceased, the PW2 was repeating what another person told him. At least, there is no evidence that the PW2 received calls to the deceased.”

D. THAT THE APPELLANT’S CHARACTER WAS NOT IN ISSUE AND COULD NOT BE ATTACKED
“Above all, the evidence tainting the Appellant with immorality and showing her generally as bad character was offered and received in violation of Section 82 of the Evidence Act. It provides: “S.82 (1): Except as provided in this Section, evidence of the fact that a defendant is of bad character is inadmissible in criminal proceeding.” The character of the Appellant was not in issue. What was in issue was whether or not she killed the deceased. She had not testified at the time the witnesses gave evidence and so she could not have made her character an issue in the trial, nor did she do so in her statements other than a denial of the charge. See Section 82 (2) (a) and (b) of the Evidence Act.”
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III. Whether the honourable Court of Appeal was right to hold that the trial Court sufficiently and properly evaluated the evidence adduced by the prosecution as well as the appellant in proof of the charge against the appellant beyond reasonable doubt?

RULING: IN APPELLANT’S FAVOUR.
A. THAT PW1-PW4 EVIDENCE WERE OF BAD CHARACTER
“Also the bulk of the evidence of PW1-PW4 was devoted to and did, portray the appellant as a call girl. It is evidence of bad character and no reasons were given for its admission. It is inadmissible. See Lawal v. State (1966) 4 NSCC 111 at 116-117 paras 50-55. The said evidence of bad character of the appellant should have been expunged had the evidence been properly evaluated. See Lawal v. State (1966) 1 All ALR 107; Chukwueke v. State (1991) 7 NWLR (Pt. 205) 604.”

B. THAT THE IPO STATEMENT IS NOT SUPPORTED BY THE MEDICAL EVIDENCE
“PW1 swore that the Appellant stabbed the deceased all over his body. However, the doctor’s report as reproduced at page 10 of the record did not mention stab wounds all over the body. It showed wounds on the head and face and cut throat as well as defensive wounds (underlining mine). The evidence of the PW1 that the appellant stabbed the deceased all over his body is not borne out by the medical evidence. A proper evaluation of evidence would have raised the question of the appellant, a mere girl, not credited with supernatural powers, killing a man in a fight (as evidenced by the defensive wounds on the deceased) without herself sustaining an injury and not having a splutter or stains of blood on her cloths or body after having killed the deceased with a stabilizer and two kitchen knives all stained with blood.”

C. THAT THE DOCUMENTARY EVIDENCE WAS UNAVAILABLE HAVING NOT BEEN TRANSMITTED
“Above was communicated to the Chief Registrar of the Supreme Court on 6th June 2012 and the matter appeared laid to rest. In the circumstances, this Court is not in a position to determine whether or not the documentary evidence was properly evaluated. And given the antecedents of the trial Court and the Court below with respect to the oral evidence in this case, it is dangerous to assume that the documentary evidence was properly evaluated by either Court. The seeming flight of the exhibits from the custody of the trial Court speaks eloquently to the plan to railroad the appellant to the gallows. In the circumstances, the doubt created by the disappearance of the vital exhibits and the resultant inability of this Court to evaluate same enures to the benefit of the appellant.”

Also read:  Afor Lucky v. The State (2016)

D. THAT THE BOOTS WERE UNINVESTIGATED BY THE POLICE
“Further, the appellant maintained that two masked men came in and killed the deceased while he was about to take her back to school that night. There is Exhibit N – the booth which was found at the scene. There is evidence by the prosecution that it did not belong to either the deceased or the appellant. The Police did not find out how and why it was there at the material time. It could have been left by those two masked men. The doubt continues to linger on.”
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IV. Whether the honourable Court of Appeal was right to hold that the learned trial Judge rightly excluded pieces of evidence which were vital to the defence thereby depriving the appellant the benefit of doubt which the evidence could have created in the trial court or in the prosecution’s case?

RULING: IN APPELLANT’S FAVOUR.
A. THAT THE NEWSPAPER WRONGLY EXPUNGED BY TRIAL COURT WAS RELEVANT
“There was no evidence before the trial Court that ‘the article was based on a letter dated 15th July, 2001 but delivered on 21 September’. There was no evidence or material from which the trial Court could draw ‘the inference that the author recorded information supplied by a person or a group of persons that lacked personal knowledge of the matter pending before this Court or relevant to the matter before this Court.’ The trial Court relied on extraneous matters in rejecting the Newspaper. The fact that the PW1 was seeing it for the first time in Court is no reason for rejecting it. The trial Court held, in its conclusion, that the article captioned ‘Law Teacher Resigns over Death Threat from Cultists’ is not relevant, and so inadmissible. This cannot be correct in view of the portion of the Newspaper reproduced by the Court in its ruling at page 42 of the record. The article named the deceased and who killed him.”

“The purpose of the trial was to determine who killed the deceased – the appellant or some other person or persons, and here is a Newspaper in which a cult group – the Black Dragons – claimed responsibility for the killing in the following words: “Again do you still remember your friend Iyobu Nemieboka… Nemieboka who thought he was Almighty God we brought him down.” Nothing can be more relevant or material to the issue before the Court than the claim of the Black Dragons. Granted that the cultists may not have “… sliced his manhood, removed his eyes, etc…” or in fact dismembered his body” their claim to have “brought him down” is not diminished by their obvious exaggeration of what they did to the body of the deceased. In my view, the reasons the trial Court gave for rejecting the Newspaper is irrelevant and is based on extraneous matter or speculation by the Court as to the source of the article.”
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V. Whether the honourable Court of Appeal was right to hold that the prosecution has proved the charge against the appellant beyond reasonable doubt, based on the circumstantial evidence before the trial court?

RULING: IN APPELLANT’S FAVOUR.
A. THAT THE PROSECUTION EVIDENCE IS CONTRADICTORY
“There is evidence that the appellant was banned from the premises.  Assuming but not conceding that the appellant had a key to the apartment of the deceased, she could not have used the key unless she got into the premises and no one has said how she got into the premises except the speculation of PW1. In the circumstances, I hold the view that the appellant did not sneak into the premises and into the deceased’s apartment. The deceased brought her into the premises and into his apartment on 30/7/2001.”

“Even in spite of his extreme prejudice against the appellant, the PW1 actually exonerated the appellant from the killing by giving conflicting evidence as to who killed the deceased. At page 77, PW1 said: ‘From my investigation and findings the accused murdered the deceased.’ In cross-examination, the same witness said: ‘I came by the conclusion that the accused had a self-inflicted injury because of the magnitude of the injury on the deceased. If the accused was present at the time the deceased was injured, she could have had half of the injury the deceased sustained.’ (See page 49 of the record).”

B. THAT THE PW1 EVIDENCE IS HEARSAY
“Not only are the facts stated by the PW1 hearsay, they are false.  It is in evidence that the appellant attempted to take her life but there is no evidence that the appellant ever said she would kill the deceased under any circumstance at all. At page 46, the PW1 said: ‘The accused leaked the gas in the deceased kitchen in attempt to destroy the entire evidence per my investigation. The accused 51 … 52 denied this fact in her statement to the police. I got this fact from Mr. Akingboye when I visited the scene… In the course of my investigation Mr Akingboye told me that on the faithful night the accused after she had reported the death of to him and his wife also told him that the scene was burning, he hasten to the deceased kitchen and put off the fire.’ This is another piece of hearsay evidence. In any case, if the appellant set fire “to destroy the entire evidence” she would not have alerted Mr. Akingboye who promptly put out the fire. Had the learned trial Judge properly evaluated the evidence, particularly, the evidence of the PW1, he could not have drawn the inference that the Appellant killed the deceased.”

C. THAT THE APPELLANT DID NOT SNEAK INTO THE DECEASED HOUSE, BUT BOTH WERE TOGETHER
“In a portion of Exhibit K6 reproduced in the appellant’s reply brief, the appellant stated, inter alia: ‘I still write in respect of our discussion last night… Yesterday night you talked for more than 3 hrs…. I just wondered what you meant by locking me in here. Abi you don’t know I have lectures? I almost broke this door ………… just realized Mrs. Akingboye will see me. What will I explain to do here.’ Above shows that the appellant and the deceased spent the night previous to the night of the murder together in the deceased’s apartment, and the deceased talked to her, the appellant, for 3 hours. It also shows that the deceased locked the appellant, though with her consent, in his apartment and went to work the following morning. lf the appellant stole into the deceased’s apartment unknown to the deceased, the two of them could not have talked for 3 hours nor could the deceased have locked the appellant in his apartment with her consent if she had sneaked in unnoticed. If the appellant had stealthily entered the premises and the appellant had killed the deceased, by the theory of consciousness of guilt, she would have fled the scene to save her life. The same way she went in to kill the deceased, if she had done it, she would have left the scene undetected. There could hardly have been anyone on the street that late in a rainy night.”

Also read:  Chief Adebiyi Olafisoye v. Federal Republic Of Nigeria (2004)

D. THAT THE DECEASED HID THE KNIFE FOR HER SAFETY
“Appellant gave evidence consistent with the ten statements she made at the instance of the police. She explained why she hid the knives. She was afraid the killers would come back and kill her too with the knives. The appellant was raked over the coals in cross-examination but her testimony was not shaken.”

E. THAT THE CIRCUMSTANTIAL EVIDENCE IS NOT COGENT & COMPLETE
“Before a piece of evidence, whether direct or circumstantial, can be considered and probative value ascribed thereto, it must be admissible. No inference of guilt can be drawn from a purported circumstantial evidence which, as in this case, is inadmissible. The evidence in this case, alleged to be circumstantial, cannot be relied on to convict the appellant on the authorities above. Even if the circumstantial evidence in this case is admissible, it is incapable of proving any proposition with the accuracy of mathematics. See R v. Taylor & Ors (1928) 21. CAR 20 at 21. It is not cogent, complete or unequivocal. It is not incompatible with the innocence of the appellant and from the unchallenged evidence of the appellant; the evidence is capable of explanation upon other hypothesis than that of the guilt of the appellant as is evident from her testimony in the trial Court. In any case, the mere fact that “the circumstantial evidence adduced by the prosecution is complete and the chain of evidence is unbroken” does not lead to the irresistible conclusion that the appellant and no one else committed the murder.”

“That the evidence is complete and the chain of evidence is unbroken do not invest the circumstantial evidence with the cogency required for the Court to draw inference of the guilt of the appellant therefrom. Had the trial Court considered the conditions that must be present before the inference of guilt of an accused can be drawn from the circumstantial evidence, the appellant would have been acquitted and discharged. Had the Court of Appeal considered the trial Court’s reason for reliance in the circumstantial evidence, it would have been clear to it that evidence that is complete and unbroken cannot, by that fact alone, found conviction on a charge of murder.”

“Again, had the lower Court considered the substance of 60 … 61 the evidence of PW1-PW4, it would have been clear to it that the rest of the evidence is as much hearsay as Exhibits B and S – the statements of Blessing Chinda and Cecilia Genesis that were expunged. It would have been clear to it that the witnesses testified not to help the trial Court to get the truth but to take their pound of flesh on the appellant who they believe killed the deceased even before she was tried. They, from their evidence, did not seek justice but vengeance and to reinforce their intent, and make the trial Court act on same, they had to paint the appellant with the tarnished brush of a whore in evidence of bad character that is irrelevant and therefore inadmissible.”
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✓ DECISION:
“All the five issues having been resolved in favour of the appellant and against the respondent, I allow the appeal and set aside the judgment of the Court below that the appellant and others at large killed the deceased and the judgment of the trial Court that the appellant alone killed the deceased. Consequently, it is my order that the appellant, Vivian Odogwu, be, and is hereby, acquitted and discharged on the charge of murder.”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)

➥ REFERENCED (CASE)
⦿ CIRCUMSTANTIAL EVIDENCE MUST BE CAPABLE OF PROVING A PROPOSITION WITH THE ACCURACY OF MATHEMATICS
Speaking of circumstantial evidence, Lord Heward, CJ, said, inter alia: “… but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.” See R v. Taylor & Ors (1928) 21 CAR 20 at 21.

⦿ WHEN OBJECT OF EVIDENCE IS TO PROVE TRUTH OF STATEMENT MADE BY ANOTHER, IS HEARSAY
Subramaniam v. Public Prosecution (1956) 1 WLR 965 at 969, it was held that: “Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to prove the truth of the facts asserted by the statement. It is not hearsay and is admissible when it is proposed to establish by evidence not the truth by the statement but the fact that it was made'”

⦿ RELEVANT FACTS ARE FACTS SO CONNECTED WITH THE FACTS IN ISSUE
Tobi, JSC, held that: “Relevant facts are facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction and facts which are the occasion, caused or effect, immediate or otherwise of relevant fact or facts in issue, or which constitute the state of things under which they happened or which afforded an opportunity from their occurrence or transaction.” See Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 319 at 402 paras G-H.

⦿ CIRCUMSTANTIAL EVIDENCE MUST BE NARROWLY EXAMINED
In R v. Teper (1952) AC 480 at 489, it was held: “Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another… It is also necessary before drawing the inference of the accused guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”

⦿ CIRCUMSTANTIAL PIECE OF EVIDENCE MUST BE COGENT, COMPLETE, UNEQUIVOCAL
Pius Nweke v. The State (2001) 84 LRCN 482 at 506, was held: where it was held: “To secure a conviction in a criminal trial, circumstantial piece or pieces of evidence must be cogent, complete and unequivocal. Such evidence must be too compelling and must lead to the irresistible conclusion that the accused and no one else committed the crime. Indeed, the facts must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of his guilt.” See the decision of this Court in Joseph Lori v. The State (1990) 8-11 SC 86 at 87. See also Iyaro v. The State (1988) 1 NWLR (pt.69) 256; Mbenu v. The State (1988) 3 NWLR (pt. 84) 615 at 630; Ukorah v. The State (supra); Adie v. The State (1990) 1-2 SC 11 at 22.

➥ REFERENCED (OTHERS)

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